Does an ED patient say he or she can’t afford recommended follow-up care? If so, emergency physicians (EPs) can protect themselves legally with good documentation, says Aaron Hamming, JD, risk resource advisor at Okemos, MI-based ProAssurance Companies.
“We have had good results defending claims when we clearly can show the physician made the appropriate medical recommendation, but the patient did not comply,” Hamming says.
Hamming recommends EPs document recommendations consistent with their best medical opinions. If there is a deviation from the plan, then EPs should document why they are not using the preferred option. Cost, scheduling, or general unwillingness could each play a role.
“It resonates with juries when we show physicians documenting thorough education of patients and appropriate treatment recommendations — and if the recommendations are not being followed, why,” Hamming says.
Michael B. Weinstock, MD, is chair of the ED at Mount Carmel St. Ann’s Hospital in Westerville, OH, and co-author of Bouncebacks! Medical and Legal. If the EP documents that the patient agreed to follow up, the EP gave the patient someone with whom to follow up, and then the patient does not follow up, Weinstock says it is unlikely the patient could prevail in litigation. Weinstock sees greater risk if a patient perceives the EP as disregarding his or her financial worries.
“If it seems like the EP didn’t care, that is a problem,” he warns.
A recent malpractice case that went to trial involved this scenario. Though the case didn’t involve ED care, it has some important medical/legal implications for EPs, Hamming notes. An oncologist ordered a course of treatment that was considered less effective and significantly riskier, but was cheaper.
“The patient passed away, and a lawsuit was filed challenging the treatment decision,” Hamming says.
The medical record indicated the physician extensively educated the patient on the risks and benefits of various options — and also that the patient chose the less standard treatment because it involved less out-of-pocket expenses.
“It clearly was documented why the patient would choose a procedure that may not be the gold standard, and that reason resonated with the jury,” Hamming says, explaining that the factors below helped the defense:
- Excellent documentation of patient education regarding the various treatment options.
Several jurors interviewed after the case expressed appreciation that the physician documented extensively, especially the informed consent portion.
“Effective informed consent evidence is some of the most effective evidence we can show in a case like this,” Hamming notes.
- A lengthy documented history of patient non-compliance.
This shifted the focus from the physician’s actions to the patient’s actions.
“The patient was seen by multiple providers throughout the hospital system, and there was evidence of non-compliance with provider recommendations,” Hamming says.
This included failing to show up to several follow-up appointments, exceeding prescribed dosages of opioid medications, and discontinuing visits with certain specialists or providers because the patient thought they weren’t doing any good.
“The patient also failed to get some medications filled, probably because of the co-pay, but we don’t know for certain,” Hamming adds.
- Specific reference to the patient wanting to use the less costly option.
“Ultimately, one of the most important pieces of evidence in the mind of the jury was some free text in the [electronic health record] informed consent document,” Hamming says, noting this included the standard language of reviewing in detail the risks and side effects of the two main options. “But it continued that the patient asked several questions about the costs of the treatments.”
The doctor noted the patient “apparently is making most of his decision based on price in terms of the cost of either treatment,” Hamming adds.
Address Concerns Over Costs
It is difficult for EPs to address patients’ financial concerns directly.
“It is rare that we know what the price to the patient will be,” Hamming says.
In some cases, the purpose of recommended follow-up is to connect the patient with outpatient care.
“A small minority of patients really have to see someone within a day or two,” Weinstock says.
If the EP believes the patient truly needs follow-up within 24 to 48 hours — such as a patient with possibly evolving appendicitis — and the patient lacks the ability to pay for this care, Weinstock says, “your failsafe can always be to have that patient come back to the ED.”
Another approach is for the EP to contact the patient’s primary care physician or specialist and say, “I have a patient I’m really concerned about, with a decreased ability to pay. Would you agree to see them tomorrow?”
“I do that fairly frequently,” Weinstock says, explaining that the EP can then tell the patient that he or she spoke with the doctor and the doctor agreed to see the patient.
Situations in which EPs take costs into account are “frequent and varied,” says Dan Groszkruger, JD, MPH, principal of Solana Beach, CA-based rskmgmt.inc. EPs may provide non-emergency, stop-gap care in the ED if a patient says they can’t afford to follow up with a specialist.
“But stop-gap care is just that,” Groszkruger warns. “When the patient really needs long-term care to stabilize or recover, but no such care is available, merely providing stop-gap care is insufficient.”
Groszkruger says knowing that an uninsured or poor person is unlikely to obtain specialty follow-up care due to financial factors does not create a legal duty for the EP to provide or pay for follow-up care.
“But the lack of legal duties cannot ensure that an ED physician will not be sued if a patient dies or suffers serious harm as a result of no follow-up care,” Groszkruger notes. “We recognize that ‘big damages’ drive malpractice litigation, not poor care.”
If the patient clearly was non-compliant, contributory negligence will be pleaded as an affirmative defense in the defendant’s answer, Groszkruger says. However, where the explanation is financial, the patient is less likely to be seen as negligent.
“Thus, any contributory negligence generally will be irrelevant,” Groszkruger says.
Knowing that many patients will have difficulty accessing specialty follow-up care, some EDs routinely contact patients the following day to reiterate the need for follow-up care, Groszkruger adds.
“Documenting this type of communication may be the only feasible way to mitigate the risk that a patient’s failure to secure follow-up care may result in death or permanent harm — followed by a lawsuit,” Groszkruger says.
- Dan Groszkruger, JD, MPH, Principal, rskmgmt.inc., Solana Beach, CA. Email: email@example.com.
- Aaron Hamming, JD, Risk Resource Advisor, ProAssurance Companies, Okemos, MI. Phone: (517) 347-6292. Fax: (517) 349-8977. Email: firstname.lastname@example.org.
- Michael B. Weinstock, MD, Adjunct Professor, Department of Emergency Medicine, The Ohio State University College of Medicine, Columbus. Phone: (614) 507-6111. Email: email@example.com.